Precedents of Pleading in Civil Actions Under the New-York Code of Procedure

Many of the precedents given in this volume are either such as I have used in my own practice, or such as have been prepared for actual use by other members of the profession; and I take this occasion to say that I am under great obligations to many of my professional brethren, in different parts of the State, for their kindness in furnishing me with valuable contributions, which I have freely used, taking the liberty, however, in some few instances, of making such alterations and amendments as seemed to be necessary or proper. In cases where the pleadings have been drawn for use by others, I have, for the most part, retained the real titles of the causes, and the names of the attorneys by whom the pleadings were drawn or used. Those which have been expressly prepared for this work, are, for the most part, printed without the signatures of attorneys.

The references in the notes to the Treatise on Pleadings are to the second edition. The notes contain references, also, to most of the decisions relative to the subject of pleadings, made since that volume was published, including 1 Smith's Court of Appeals Reports, 24 Barbour, 5 Duer, 14 Howard and 5 Abbott Practice Reports.

TROY, March, 1858.

G. V. S.

TABLE OF CONTENTS.

PART I.

PRECEDENTS OF PLEADING BEFORE THE CODE, IN EQUITY

AND COMMON LAW CASES, AND PRECEDENTS OF

ADMIRALTY PLEADING.

1. Original bill in equity. in a suit brought to charge lands pur-

chased from a judgment debtor with an equitable lien or

trust in favor of the judgment creditor, for the payment of

the judgment,

............

....... ........

2. Common law declaration, in case by holder of mortgage, for

waste committed after decree of foreclosure and before sale,

3. The same, by executors, for injury done to testator's premises

in grading a street, .

........

............

4. Libel, in personam, in admiralty, for damages arising from negli-

gent collision,.

.........

5. Libel, in rem, for towage service,.

.... ........

...... ........

6. Equitable action, under the Code, set forth in separate para-

7. Answer to bill in equity,.............. ............

8. Common law general issue, and special pleas in bar,...

9. Answer, in admiralty, to libel, in personam,..

10. Answer, under the Code, in separate paragraphs,

PART II.

COMPLAINTS IN CASES DEMANDING EQUITABLE RELIEF.

(1.) IN CASES OF MISTAKE.

1. To have deed reformed and mistake in description of premises

corrected,

PAGE.

2. To reform a written contract for lease of real estate, and for

the specific performance of the contract as reformed,......

(2.) IN CASES OF ACCIDENT.

3. For reimbursement of moneys accidentally distributed to next

of kin, by administrators, on a judgment subsequently re-

4. For execution of a trust, where the trustee has died and omitted

to execute the trust by accident or neglect,... .

5. To compel executors and trustees to deliver deed of deceased

grantor, intended as a gift, but which, by the accidental

death of the grantor, had not been delivered, . .

6. To compel a trustee to certify his consent to the execution of

a conveyance, which he had omitted by accident to do, ....

(3.) IN CASES OF SPECIFIC PERFORMANCE.

7. Specific performance of a written agreement for the purchase

of real estate by vendor against vendee,....

8. Against vendor who has received part of purchase money and
delivered possession, but refuses to make title,

......

...........

9. Against vendor, with prayer for alternative relief in damages,

if it appear that defendant is unable to convey,

10. Against vendor and subsequent purchaser, with notice of plain-
tiff's rights under prior contract, asking alternative relief,..
11. By lessee against lessor, for specific performance of contract
for lease,.

................

12. Against railroad company, for performance of covenants to con-

struct crossings, &c., in a deed of land to the company,

with prayer for damages,...

13. Against railroad company, to compel performance of legal obli-
gation, to construct crossings, &c., not arising in contract,

(4.) INSTRUCTIONS TO RESTRAIN COMMISSION OF WRONGFUL ACT.

......

14. By landlord, to restrain waste and compel lessee to put premises

in repair,.

15. To restrain defendant from excavating his lands adjoining plain-

tiff's premises,....

.... ........ ........

16. To restrain defendant from turning the course of a creek upon

plaintiff's lands, united with a cause of action for trespass,

in digging a new channel for creek,....

17. To restrain defendant from diverting water-course, alleging his

18. To restrain defendant from unlawful use and diversion of water-

power, and compel him to restore water-course,.

19. To restrain unlawful use of trade marks, praying an account of

..........

................

20. To restrain foreclosure sale, and declare mortgage not a lien

21. The same, and to quiet possession and remove cloud from title,
22. The same, alleging that mortgage is usurious, and praying that
it be delivered up and canceled,..

23. To restrain defendants from prosecuting vexatious suits under

a void agreement, and praying that it be delivered up to be

........

.......

24. For an injunction order and receiver, in aid of an action to re-

cover possession of personal property,....

25. Prayer to complaint, to restrain laying a railroad track in a city,

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